Rajasthan High Court - Jodhpur
United India Ins. Company Limited vs Pawan Devi on 27 March, 2019
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 575/2019
United India Ins. Company Limited, Through Deputy Manager, T.
P. Hub, 2Nd Floor, 74-A, Bhati N Plaza, Main Pal Road, Jodhpur.
----Appellant
Versus
1. Pawan Devi W/o Late Laxman Ram Ji, Aged About 38
Years, B/c Garg, R/o Mandar, Tehsil Revdar, District Sirohi.
2. Ankit Kumar S/o Late Laxman Ram, Aged About 16 Years,
Minor Through Natural Guardian Mother Smt. Pawan Devi
I.e. Respondent No. 1. B/c Garg, R/o Mandar, Tehsil
Revdar, District Sirohi.
3. Vipul Kumar S/o Late Laxman Ram, Aged About 14 Years,
Minor Through Natural Guardian Mother Smt. Pawan Devi
I.e. Respondent No. 1. B/c Garg, R/o Mandar, Tehsil
Revdar, District Sirohi.
4. Arpana Kumari D/o Late Laxman Ram, Aged About 11
Years, Minor Through Natural Guardian Mother Smt.
Pawan Devi I.e. Respondent No. 1. B/c Garg, R/o Mandar,
Tehsil Revdar, District Sirohi.
5. Smt. Mani Ben W/o Badri Prasad Ji, Aged About 65 Years,
B/c Garg, R/o Mandar, Tehsil Revdar, District Sirohi.
6. Badri Prasad S/o Jeta Ram Ji, Aged About 64 Years, B/c
Garg, R/o Mandar, Tehsil Revdar, District Sirohi. (Name
Deleted)
7. Kalu Ram Bheel S/o Ganesha Ji, B/c Bheel, R/o Mandar,
Tehsil Revdar, District Sirohi. (Driver/owner)
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 654/2019
1. Pawan Devi W/o Late Shri Laxmanram, Aged About 38
Years, B/c Garg, R/o Village Mandar, Tehsil Revadar,
District Sirohi.
2. Ankit Kumar S/o Late Shri Laxmanram, Aged About 16
Years, (Minor) Minor And Being Represented Through
Natural Guardian Mother Smt. Pawan Devi. B/c Garg, R/o
Village Mandar, Tehsil Revadar, District Sirohi.
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(2 of 8) [CMA-575/2019]
3. Vipul Kumar S/o Late Shri Laxmanram, Aged About 14
Years, (Minor) Minor And Being Represented Through
Natural Guardian Mother Smt. Pawan Devi. B/c Garg, R/o
Village Mandar, Tehsil Revadar, District Sirohi.
4. Mst. Arpana Kumar D/o Late Shri Laxmanram, Aged
About 11 Years, (Minor) Minor And Being Represented
Through Natural Guardian Mother Smt. Pawan Devi. B/c
Garg, R/o Village Mandar, Tehsil Revadar, District Sirohi.
5. Maniben W/o Late Shri Badriprasad Ji, Aged About 65
Years, B/c Garg, R/o Village Mandar, Tehsil Revadar,
District Sirohi.
----Appellants
Versus
1. Kaluram Bheel S/o Shri Ganesha Ji Bheel, R/o Mandar,
Tehsil Revdar, District Sirohi. (Driver And Owner)
2. United India Insurance Co. Ltd., Through Authorized
Officer, Divisional Office, Lic Building, Mandiya Road, Pali.
(Insurer)
----Respondents
Mr. T.R.Singh Sodha for appellant in Appeal No.575/2019 and
respondent No.2 in Appeal No.654/2019
Mr. Rajesh Panwar for respondents in appeal No. 575/2019 and
for appellants in appeal No.654/2019.
HON'BLE MR. JUSTICE P.K. LOHRA
Order 27/03/2019 These two cross appeals under Section 173 of the Motor Vehicles Act, 1988 (for short 'Act') are directed against a common judgment and award dated 29th of November, 2018 passed by Motor Accident Claims Tribunal, Sirohi (for short 'learned Tribunal') with different perceptions.
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(3 of 8) [CMA-575/2019] Appellant-insurer in appeal No.575/2019 has challenged the impugned judgment and award wholesomely, whereas appellants (claimants) in appeal No.654/2019 have questioned the finding recorded by the learned Tribunal on Issue No.2 relating to quantum of compensation. The appellant-claimants in their appeal have categorized determination of compensation by the learned Tribunal inadequate and consequently craved for its enhancement.
Succinctly stated the facts of the case are that claimants preferred a claim petition under Section 166 read with Section 140 of the Act before the learned Tribunal, inter alia, on the ground that on fateful day of 3 rd of May, 2014 when deceased, Laxman Ram, was returning back from funeral ground as pedestrian at about 6:30 PM, he was crushed to death by vehicle Tavera No.RJ-24-UA-0064 on the road from Teen Batti Chauraha to Gujrat. As per version of the claimants, accident was caused by the driver of Tavera while driving it rashly and negligently. The accident resulted in grave and serious injuries to deceased Laxman Ram on vital parts of his body, and therefore, he was immediately taken to hospital but, despite best efforts made, he eventually succumbed to the injuries at Swaroop Civil Hospital, Ahmadabad (Gujrat) on 14th of May, 2014. Factum of accident was reported to Police and after investigation driver/owner of offending vehicle Kaluram was charge-sheeted before the competent criminal Court for offences punishable under Sections 279 and 304-A IPC. In the claim petition besides (Downloaded on 30/06/2019 at 05:11:32 AM) (4 of 8) [CMA-575/2019] driver/owner of the offending verhicle its insurer, i.e., appellant in appeal No.575/2019 was also arrayed as non-claimant. The claimants quantified total amount of compensation to the tune of Rs. 56,70,000/- under different heads.
Pursuant to notices issued by learned Tribunal despite appearance no reply to the claim petition was filed on behalf of owner/driver of the offending vehicle. The appellant-insurer submitted reply to the claim petition by refuting all the allegations and objection was also raised for three days' delay in lodging of FIR and false involvement of the insured vehicle. Besides that, the insurer also raised an objection that driver of insured vehicle was not in possession of valid driving licence as well as route permit and fitness certificate of the vehicle at the time of accident. In substance, as per version of the insurer, insured has violated the terms of insurance policy.
The learned Tribunal, on the basis of pleadings of the rival parties, settled three issues for determination. On behalf of claimants, claimant - Smt. Pawan Devi herself appeared in the witness box as AW-1 and also examined an ocular witness AW-2 Bhawani Shanker. In the form of documentary evidence 102 documents were tendered, which were exhibited. However, no documentary or oral evidence was tendered by the non-claimants including the insurer.
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(5 of 8) [CMA-575/2019] After conclusion of evidence of rival parties, learned Tribunal heard final arguments and decided the Issue No.1 relating to rash and negligent driving of the insured vehicle in favour of claimants and against non-claimants.
While adverting to Issue No.3, which was settled on the basis of objections of the insurer, learned Tribunal decided the same against appellant-insurer for want of any evidence in this behalf.
The crucial issue, i.e., Issue No.2 regarding quantum of compensation is examined threadbare by the learned Tribunal. Although, claimants in the claim petition projected income of the deceased Laxman Ram to the tune of Rs. 21,000/- per mensem as plumber and other works of light fitting but for substantiating the same no cogent evidence was tendered. Therefore, in that background, the learned Tribunal reasonably assessed income of the deceased @ Rs.5,000/- mensem i.e. 60,000/- per annum. Thereafter, considering the age of deceased 40 years and adding 40% income for future prospects quantified income to the tune of Rs. 84,000/- per annum. The factum of four dependents on deceased is also taken into consideration by the learned Tribunal for deducting one-fourth income of the deceased for personal expenses. With this finding, the learned Tribunal finally worked out total amount for compensation for loss of dependency to the tune of Rs.9,45,000/- by applying multiplier of fifteen. The learned Tribunal then added Rs.40,000/- for loss of consortium, (Downloaded on 30/06/2019 at 05:11:32 AM) (6 of 8) [CMA-575/2019] Rs.15,000/- for loss of estate and amount of same denomination for funeral expenses. That apart, medical bills of Rs.1,08,012/- with eleven days hospitalization @ Rs.500/- per day, i.e., total amount of Rs.5,500/-, is also added for arriving at total amount of compensation to the tune of Rs.11,38,550/-.
I have heard learned counsels for the parties and pursued the impugned award.
Upon perusal of the impugned award, I am unable to find any manifest error by the learned Tribunal in appreciation of evidence while deciding Issue No.1 in favour of claimants. Undeniably, at the time of accident, deceased Laxman Ram was pedestrian who was crushed to death by the insured vehicle. Moreover, the cause of accident due to rash and negligent driving of insured vehicle is also duly proved by the claimants inasmuch as an eye witness AW-2 Bhawani Shanker has proved rash and negligent driving of the insured vehicle. It is also noteworthy that no counter evidence was produced by the non-claimants including the insurer and even driver of the insured vehicle too has not appeared in the witness box. Thus, in the given circumstances, by no stretch of imagination finding on Issue No.1 can be faulted.
Issue No.3 was settled on the basis of objections raised by the appellant-insurer but it has failed to discharge its burden inasmuch as no evidence was tendered on its behalf. Therefore, (Downloaded on 30/06/2019 at 05:11:32 AM) (7 of 8) [CMA-575/2019] the said finding too is unassailable. Now, switching on the finding on Issue No.3, suffice it to observe that the learned Tribunal on the basis of materials available on record has reasonably assessed income of the deceased, which by no means, be categorized as excessive or inadequate. As a matter of fact, the positive assertion of the claimants was that the deceased was earning Rs.21,000/- per mensum, but no documentary evidence was produced to substantiate the same. Therefore, in my view, approach of the learned Tribunal in assessing income @ Rs.5,000/- per mensum was just and reasonable.
It goes without saying that in accident claim cases burden of proving vocation and income of the deceased/injured is on the claimant(s) and they are required to furnish requisite proof to substantiate the pleadings. Any pleadings without proof cannot be relied upon by the Court.
Be that as it may, the assessment of monthly income of the deceased by the Tribunal, which is sought to be challenged by the insurer, cannot be categorized as infirm in the facts and circumstances of the case as the assessment is just and reasonable. Apart from the assessment of monthly income of the deceased, the learned Tribunal has also rightly applied multiplier after adding 40% income for future prospects. (Downloaded on 30/06/2019 at 05:11:32 AM)
(8 of 8) [CMA-575/2019] The one-fourth deduction for the personal expenses of deceased is also in conformity with the law laid down by Apex Court in case of Sarla Verma Vs. Delhi Transport Company [(2009) 6 SCC 121]. Regarding addition of 40% of future prospects also, the learned Tribunal has rightly applied ratio decidendi of the Larger Bench decision of Supreme Court in case of National Insurance Company Ltd. Vs. Pranay Sethi [2017 (13) SCALE 12] . The other compensation for loss of consortium, estate and funeral expenses too are founded on the decision in Pranay Sethi (supra). The medical bills submitted by the claimants and so also the expenditure incurred for during hospitalization and medical attendance were never impeached by the non-claimants. Therefore, amount awarded in this behalf too are just and reasonable.
In totality, I record my satisfaction that the compensation quantified and awarded by the learned Tribunal is just and reasonable within the four corners of Section 168 of the Act and consequently impugned judgment and award warrants no interference at the behest of either of the appellants.
Resultantly, both these appeals fail and are, therefore, dismissed summarily.
(P.K. LOHRA),J 20-arvind, Jr.P.A./-
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